As noted in our prior alert, the U.S. Department of Labor has revised the ETA Form 9035, Labor Condition Application (LCA) and it went into effect on Monday, November 19th, 2018. An LCA is required for all filings requesting H-1B, H-1B1 or E-3 classification.

The most important changes are the following:

If the H-1B, H-1BI or E-3 worker is to be placed at a third-party work location, the legal name of the third-party entity will have to be disclosed on the LCA.

Employers must estimate the total number of H-1B, H-1B1 and E-3 “workers” who will be placed at each worksite listed in the LCA.

H-1B Dependent Employers or willful violators of the LCA regulations must specify the basis for any exemption from the additional attestation requirements, which includes additional recruitment and non-displacement of US workers. If the employer claims the exemption from these attestations solely based on the H-1B worker having attained a Master’s degree or higher in a specialty occupation; Appendix A will have to be completed and supporting documentation verifying the foreign national’s degree information will have to be uploaded.

USCIS To Continue to Expand Implementation of New Policy Memorandum of Notices to Appear (NTA)

On October 1, 2018, the U.S. Citizenship and Immigration Services (USCIS) had announced the implementation of its new Notice to Appear (NTA) policy that will have an impact on immigrants with denied applications for benefits. USCIS began implementing the new policy memorandum for applications for Adjustment of Status and applications to Extend or Change Non-immigrant status.

On November 19th, US CIS has expanded the types of applications/petitions that may be impacted by the NTA policy, they include:

Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions); and

I-730 Refugee/Asylee Relative Petition, when the beneficiary is present in the US, as well as Form I-485, Application to Register Permanent Residence or Adjustment of Status, filed with these underlying form types.

The NTA’s will not be concurrently issued with denial notices but rather will provide adequate notice when an application for a benefit is denied. A recent USCIS teleconference suggested that NTAs will not be issued until the statutory period for an appeal has passed. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA.

Federal Court Blocks Trump Administration’s Asylum Ban

On Monday, November 19th, 2018 a federal judge in San Francisco, issued a temporary restraining order blocking the Trump administration’s new asylum ban which denied asylum to immigrants who cross the US-Mexico border illegally, saying it violates existing law and would cause irreparable harm to immigrants.

Earlier this month, President Trump had issued a proclamation saying anyone crossing the U.S. southern border without doing so through an official port would be ineligible for asylum. The American Civil Liberties Union, the Southern Poverty Law Center, the Center for Constitutional Rights and others quickly filed lawsuits seeking to block the order. The TRO will remain effective until December 19th.

Visa Bulletin for December 2018

The December 2018 Visa Bulletin has been released, and the cutoff dates in the final action (FA) chart for Family Sponsored and employment-based categories have changed from the November 2018 Visa Bulletin. There were modest advancements in EB-1 preference category for all countries, except China and India; EB-2 will remain current for all countries, except for China which will advance by six weeks and one week for India. The EB-3 Professional and Skilled Worker Subcategory will continue to be current for most countries, while China, India and the Philippines will advance modestly.

USCIS has also confirmed the Dates for Filing (DF) chart is to be used for all family- and employment-based categories. Thus, in December 2018 USCIS will continue to accept family based and employment-based adjustment applications from foreign nationals with a priority date that is earlier than the “Dates for Filing” listed in the December Visa Bulletin.

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Greenspoon Marder is a national full-service business law firm with 240 attorneys and 26 locations across the United States. We are ranked amongst American Lawyer’s Am Law 200, as one of the top law firms in the U.S. since 2015. Since our inception in 1981, our firm has been committed to providing excellent client service through our cross-disciplinary, client-team approach. Our mission is to understand the challenges that our clients face, build collaborative relationships, and craft creative solutions designed and executed with long-term strategic goals in mind. We serve Fortune 500, middle-market public and private companies, start-ups, emerging businesses, individuals and entrepreneurs nationwide.

This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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